US Steadfast In Its Stand For Publishers Against The Disabled

from the bad-news dept

We've talked a few times about how the US seems to be leading the charge to block a treaty that would increase the ability of blind and other disabled people to get around copyright restrictions to access certain works. The treaty has been in negotiations for ages -- and the US position has, at times, flip-flopped. However, now it seems firmly aligned with copyright maximalist lobbyists. The latest report from the negotiations is that publishers and the movie studios have convinced US negotiators to push back on this treaty:

The United State is playing a big major role, and led by David Kappos' USPTO, generally is aligned with the publishers in efforts to narrow the agreement and limit its benefits to persons with disabilities, and is increasingly isolated in its opposition to a decision that the nature of the "instrument" will be a treaty rather than a softer non-blinding recommendation or model law. One major objective of the US delegation is to exclude persons who are deaf. Another is to limit the exceptions to text, and exclude any audiovisual content or related rights. Both of these negotiating objectives are designed to keep the U.S. movie and television industry happy. The U.S. has also been seeking ways to support other publisher friendly provisions, even when they run counter to the robust exceptions found in U.S. law.

Siding with big studios and publishers over the best interests of the blind and the deaf? How nice...

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For once, I'll give you an “average_joe” type wall of legal citations—although I'm redacting the pincites, and emphasizing some text for readability. This is part of what the court's decision in Citizen's United (hyperlinked above) rested in part III A 1:

This protection has been extended by explicit holdings to the context of political speech. See, e.g., Button; Grosjean v. American Press Co. (1936). Under the rationale of these precedents, political speech does not lose First Amendment protection "simply because its source is a corporation." Bellotti; see Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal. (1986) (plurality opinion) ("The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the `discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster" (quoting Bellotti). The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not "natural persons."

Now, do you really want to argue that First Amendment protection should not extend to corporate speech?

You are indeed allowed to argue that—despite the substantial precedent for the proposition.

In fact there was quite a bit of opposition to NAACP v Button (1963). Do you have a good argument that Button was wrongly decided?

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...underscores your own ignorance and prejudices.

During the debate over the Alien and Sedition Acts (1798-1801), the Federalists, led by John Adams (2nd U.S. president) and Alexander Hamilton argued for an English common law understanding of the First Amendment. They argued Blackstone's position that “the freedom of speech” extended only so far as a bar on prior restraints.

The Democratic-Republicans, led by Thomas Jefferson and James Madison argued that the First Amendment was intended to supplant the narrow, Blackstonian conception of the freedom of speech with a broader, more generous, American understanding. The vast expanses of a new continent demanded an equally spacious ideal of the political freedoms justly belonging to inhabitants of that continent.

The Federalists lost the argument, and faded into history. Mr Jefferson was elected as the third U.S. president and purchased the Louisiana territory.

You may believe, sir, that I am prejudiced against the English position on free speech.

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You may believe, sir, that I am prejudiced against the English position on free speech.

And you think that a 200 year-old citation accurately reflects the opinions of the current UK polulation on free speech? Or that current UK law does? After all, look how much the US interpretation of that 200 year-old document has changed in the last couple of decades alone including free speech.

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So what's the real, popular UK opinion on libel tourism?

I can't speak for the whole population, but for myself and most people I know the opinion is along the lines of "Oh for f*ck's sake!". IANAL so I don't follow case law but it looks like a stupid law with a ludicrously broad definition of libellous and still worse for allowing the kind of libel tourism we see now often on the most tenuous of grounds.

Frankly since the US corporate government seems determined to stick it's nose in to other countries' laws so much it'd be nice if, instead of bullying countries to prop up their own industies, they used some of that muscle to broker an international agreement on rules to fairly determine the jurisdiction of the many aspects of modern life that cross international boundaries, especially virtually.

Oh, and

In 2010, the U.S. had to pass the SPEECH Act to protect Americans

Really? Good for you. God I wish the UK governemnt would pass some laws to curb the massive overreach from the US, or at least stop importing the worst aspects of US law on top of somethign already pretty broken.

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See, this stance never made sense to me, You're arguing that a corporation, which is a group of people and not a building, by the way, lose their rights to free speech just because they are speaking in the best interests of the organization. No, a corporation is not a 'person,' it is a group of people.

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"See, this stance never made sense to me, You're arguing that a corporation, which is a group of people and not a building, by the way, lose their rights to free speech just because they are speaking in the best interests of the organization. No, a corporation is not a 'person,' it is a group of people."

A corporation is not a group of people. It is a certain kind of business, registered as such for legal and tax purposes, etc.

It has been granted certain rights recently which it did not have before. No one is arguing that corporations should "lose" those rights, only whether they were granted those rights incorrectly.

Also, no one is arguing against the speech rights of someone defending the place where they work.

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Presumably, they feel that allowing anyone an exception for any reason is not acceptable, and that the rights of the disabled are not as important as the profits they imagine they could lose.

If nothing else, they're just providing a morally acceptable excuse for pirates and DRM breakers to do what they do. For some reason, they still haven't understood that they're creating most of the incentives for piracy through their own business practices. It's a shame that the US government seems to be supporting this, but it's not surprising given who has the lobbyists.

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they feel that allowing anyone an exception for any reason is not acceptable, and that the rights of the disabled are not as important as the profits they imagine they could lose.

Actually, they believe that rights of the disabled are not as important as the profits that they can prevent other people from making.

A few years ago, I was at a public hearing on changes to my country's copyright law. I was seated at a table that included a publisher. During the "down time" between speakers, we had a discussion about books and DRM.

I gave him the following question: "If someone were to invent a device that would allow blind people to read books - say they put it over a page, and it translates the characters to braille on the fly - there is no copying involved, and nobody else would be able to read it. Would you be in favour of such a device, because it would increase the market for your books?"

His answer: "No. Such a device should be outlawed because it means that the manufacturer would be making money off my work, and I wouldn't be getting any of the profit."

"But you would be making more money - you wouldn't have to translate and print separate braille editions for blind people." I said.

"Doesn't matter - if I wanted blind people to read my books, I would print a braille version."

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That guy who speaks about the Earth being 9000 years old and sits on the Science & Tech Committee will be Promoting the newly built Creationist Amusement Park.Rep.Idiot Paul Braun is our new science leader.

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In my mind, the biggest problem is not what kind of deal gets done, but the seemingly serious discrimination against a certain disability. I am not sure a hole in IPR-protection is what is really needed. Seems like a much better idea to help in the other side of the circle. Let us call it healthcare!

You guys are looking at this from a RATIONALE point of view when you should be looking at it from a media exec's point of view. Since allowing something to happen is the same thing as encouraging it to happen (like they've argued in every copyright infringement case ever) then their point of view becomes clear. If they allow blind and deaf people to read/listen to things they like, then that's the same as encouraging others to go around blinding/deafening people. What they're really saying is that they're AGAINST people who blind and deafen other people and they're showing this very reasonable viewpoint by making the lives of blind/deaf people as miserable as possible so it discourages people from becoming blind or deaf.

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good ol' USA. discriminate against the disabled again. they should remember, a lot of those disabled are veterans that got that way fighting to protect the country from the arse holes that promote this discrimination!! everyone that is siding with this crap, from the Government, to the entertainment industries, to the public should bloody well be ashamed of themselves! they also need to remember, that one day they could become disabled and need some help!!

Chris Dodd: Form feet and mouth! Form arms and head! And I'll form...the ASS!

Later...

Chris Dodd: Oh no, they're not buying our Lies of Justice and Deceptions of Honor. We need something stronger! Form Blazing Copyright Stick! (FYI: I now have a trademark on the term "Blazing Copyright Stick" I also may have a copyright...stick. Get it?!)

Re: netflix

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isn't this about hollywood wanting to kill netflix, since
that agreement that netflix made that they will subtitle all their films... cant bother to create subtitles, cant allow anyone to make their own free subtitles now either

The copyright maximalists have one attitude, we buy copyright from the creators and this gives us the right to totally control all use of the content thereafter. Also all floss of revenue is due to piracy, which includes self publishing and publishers that do not belong to their associations.
How long before the request a law that give them a monopoly on publishing, so that they can continue in business?
Also do they get on so well with the politicians because control of information is a common objective?

The RIAA doesn't care about the deaf because they can't hear the music.
The MPAA doesn't care about the blind because they can't see the movie.

They consider them to not be potential revenue, and doing anything that might let them be revenue might possibly open the door to other people seeing or hearing something without the cartels approval and payment. That would be much to dangerous to allow to happen in their imaginations.

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Possibly. In fact, that explanation would cover the usual short-sighted and silly approach to most things those organisations do.

The RIAA may not care about the deaf, but they really should care about the blind because they can not only hear the music but are unable to appreciate many other forms of entertainment. The MPAA may not care about the blind, but they should be concerned about the deaf customers they have. Ditto the publishing industry, who can reach both groups if they allow the correct technology.

But... realistically this is about the same thing most of their wrong-headed moves tend to be about - control. With these concessions, they're being asked to partially cede control of their product. Even if doing so would mean more profit, they don't want to do that.

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One only needs to look at the uproar over what was done to the rental version release of UP. A movie with a character wearing a hearing aid and they "forgot" to put in the closed captions for the hearing impaired.

Part of the reason is the fear that people are just ripping rental discs, and then won't buy the regular release.
So they make the rental version less useful to consumers, because that'll just drive consumers to buy the full version... rather than be pissed off and find something else on the shelf.

They still can't write contracts that cover worldwide rights to the bits and pieces of their films, so they end up delaying things... then blame piracy for low sales rather than we made them wait 6 months longer than everyone else and still wanted to charge a premium price.

It really does boil down to a war on consumers because they imagine what MIGHT be possible, rather than making sure the consumer enjoys the product.

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then blame piracy for low sales rather than we made them wait 6 months longer than everyone else and still wanted to charge a premium price.

Surely Sir you lie! They are the very paragons of timeliness and coherent release schedules!

For example, I'm sure the fact that Hoodwinked Too hasn't had a UK release date hasn't encouraged "piracy" of it at all. And I'm sure that if they do release it the fact that most of the target audience will have forgotten that the first one was fantastic won't affect sales of what I've heard is a rather more mediocre 2nd effort either.

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If you're willing to safeguard your rights at the behest of the disabled, and you're proud to admit it, I'd say that damages your business far more than any "picking away" that (of all people) the blind and deaf can do.

Go on, then, tell us how providing for the blind and deaf will kill the industry, since we're clearly all so ignorant. Filthy sight and hearing pirates.

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"They don't want yet another picking away at their rights to choose how they do business."

...and we don't want corporations picking away at our rights because they don't think they've got enough of our money yet. This is especially true when they're trampling over the rights of people who are left with literally no other choice through no fault of their own - without this exemption they are forced to break the law simply to read a book or watch a movie.

Guess, what? Give me the choice of protecting a corporation's "right" to profit and a disabled person's right to access and participate in our culture, I'm not going to be on the corporate side. Especially since I think that the real danger presented by such an exemption is minimal.

"Of course, the piracy apologists will just ignore the implications on piracy here."

What implications? The DRM is already broken for illegal uses and the pirates don't notice it. It's only the legal customers that DRM screws over on a regular basis - this is just another example. If you're so concerned about piracy, stop giving people a legitimate reason to break the law - such as allowing blind people access to books. Only in your amoral world is that even remotely acceptable and only in your fantasy world would that actually prevent any piracy.

"The "they don't care" argument is like the last stand before you start calling them names, because you really know the arguments in general are pretty weak."

The argument is that people who have no ability to access the content they legally buy due to a disability should be allowed said access rather than being blocked because the **AAs think they're thieves.

If you think that's weak, I hope for your sake you're never in the position to require such help. Just another money grubbing bastard willing to sell his soul to get another dollar in his pocket.

"As a side note, I love the incredibly biased source on this article. One sided doesn't even start to cover it."

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Was that case wrongly decided? You might be surprised to learn that Justice Scalia would (probably) vote to overturn Sullivan. You can dig up a speech where he argues against the Sullivan standard, and states his opinion that it should be left up to the individual states.

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Do you want to overturn NAACP v Button? At heart, that's a simple yes or no question —although you are invited to amplify your answer.

• NAACP v Button: Rightly or wrongly decided?

Do you want to overturn New York Times v Sullivan? Again, yes or no. But you may state the grounds of your reasoning.

• New York Times v Sullivan: Right or wrong?

If you do not wish to overturn those precedents, then should the law be applied to all—without regard to the viewpoint expressed? Or should just speech against Hillary Clinton be singled out for specific regulation?

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The Pentagon Papers case is New York Times v United States (1971). The Pentagon Papers case does uphold the continued vitality of the Blackstonian bar against prior restraints—as argued by Adams and Hamiliton. But Jefferson and Madison did not argue against the First Amendment bar on prior restraints—they only argued that the American conception of free speech and free press went farther than Blackstone.

Still, if New York Times Co v Sullivan must fall because corporations have no First Amendment rights, then equally must fall New York Times Co v United States.

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Well, if you look in that wall-of-legal citations that I posted earlier from Citizen's United, both New York Times Co. v. Sullivan and New York Times Co. v. United States are cited in Belloti as support for the proposition that

The Court has recognized that First Amendment protection extends to corporations.

Now, is that proposition wrong?

Should the New York Times Company, a for-profit corporation, have no rights guaranteed under the First Amendment?

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I'm sorry... color me stupid, but what the fuck does this ruling about membership in an organization and the ability of the state to see that membership have to do with the ability of corporations and unions to swamp our speech with their more 'equal' speech?

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what the fuck does this ... have to do with the ability of corporations

The proposition that the Citizen's United opinion cites Button for is that:

This [First Amendment] protection has been extended by explicit holdings to the context of political speech

Quoting from the opinion in Button:

The NAACP was formed in 1909 and incorporated under New York law as a nonprofit membership corporation in 1911.

. . . .

We reverse the judgment of the Virginia Supreme Court of Appeals. We hold that the activities of the NAACP ... shown on this record are modes of expression and association protected by the First and Fourteenth Amendments

(Emphasis added.)

If you hold that no corporation has First Amendment rights, then it inexorably follows that the activities of the NAACP must therefore not be “modes of expression and association protected by the First and Fourteenth Amendments”.

NAACP is a corporation. Should it have First Amendment rights, as extended under the Fourteenth Amendment against state abridgment?

Re: Coompletely off topic ...

Why yes... yes I did.
But mostly because I gave Ernesto the tip, I also submitted it to Boingboing and Cory picked it up, I submitted here as well, and rounded by day off by doing a little write up for Fightcopyrighttrolls.com